Thursday, January 15, 2015

Pursuant to HB 1318 passed last session, the Texas Indigent Defense Commission commissioned a study (pdf) of indigent defense caseloads by the Public Policy Research Institute at Texas A&M. Analyzing data from several sources, they concluded:

for the delivery of reasonably competent and effective representation attorneys should carry an annual full-time equivalent caseload of no more than the following:

236 Class B Misdemeanors

216 Class A Misdemeanors

175 State Jail Felonies

144 Third Degree Felonies

105 Second Degree Felonies

77 First Degree Felonies

As I read this, attorneys whose caseload includes a variety of case types could weight them to see whether their annual total exceeds the guidelines. E.g., for somebody handling 140 Class B DWIs, 25 third degree felonies, ten second degree felonies, and five first degree felony cases in a calendar year, the calculation would run:

140/236 + 25/144 +10/105 +5/77 = .927

Using this method, an attorney would fall under the guideline maximum if this combined ratio is less than one. So, with 180 cases, that person would come in under the max caseload recommendation, even though they handled more than the 150 cases recommended by the American Bar Association in its longstanding guidelines.

By contrast, another attorney may take fewer DWIs but focus more on drug possession. Say this person has 28 DWI and pot cases combined (Class Bs), 30 clients accused of possessing less than a gram of a controlled substance (state jail felony), 30 clients with third degree felonies, 20 facing second degree felony charges and 30 charged with first degree felonies. In their case, the calculation would be:

28/236 + 30/177 + 30/144 + 20/105 + 30/77 = 1.076

So that lawyer's caseload would exceed the recommended guidelines, even though at 138 cases it would fall under the old ABA standard of 150. More serious cases typically require more time so it makes sense to weight different types of cases in this fashion. (That said, I have no way to judge whether these are the correct weights; they don't seem too far off, but there a numerous assumptions embedded within those figures.)

Regardless, counties should initiate reviews internally to see how many attorneys in their system are exceeding these guidelines - I bet there are some in most every jurisdiction - and consider means to distribute cases more broadly and/or support a public defender office to stabilize the load.

It would also be interesting to see someone - maybe the Texas Indigent Defense Commission, which has access to the data - take indigent case pay rates for different counties and apply them to these caseload guidelines to see what a wheel attorney limited to such a caseload might make. The report declared that statewide Texas attorneys receive "current average compensation of $608 per non-capital felony and $198 per misdemeanor" for indigent representation. But you'd need data broken out in more detail to figure out pay scales under the suggested guidelines.

There's lots of detail in this 114-page report (pdf) and Grits may come back to it later, but I wanted to at least get the link out there for folks who're interested.

MORE: From the Texas Fair Defense Project, which noted that "According to data collected by TIDC for 2014, appointed attorneys or
public defenders in all five of Texas’s most populous counties (Harris,
Dallas, Tarrant, Bexar and Travis counties) had caseloads at least two
times higher than the caseload limits published by the Commission today."

"Texas has a problem with attorneys handling so many criminal cases
that they cannot provide effective representation to their indigent
clients," said Senator Rodney Ellis (D-Houston). "Taking over 1,000
appointed cases in a year, for example, makes effective representation
nearly impossible."

Ellis has introduced a bill this session that
would force the judges who appoint lawyers to indigent cases to abide by
guidelines limiting how many cases the attorney is handling.

"I
applaud the work of the commission," Ellis said. "It's time for us to
get down to the serious work of implementing these guidelines."

Rogers concluded the story with the ominous caveat that, "Critics of lower caseloads note that increased time and investigation means the county pays more per case." Maybe. Or maybe they should have been doing that investigation anyway and should now begin doing the job they're paid for - zealous representation and all that entails. (See more on performance guidelines for non-capital defense representation.) Perhaps those failures explain why clients with appointed counsel tend to get worse outcomes, especially at sentencing, compared to clients represented by public defenders or retained counsel.

Once we see some of the data this post asked for, we'll be able to better judge whether these caseloads imply rates for indigent representation need to be raised. Maybe so. Or, perhaps lawyers who rely solely on indigent cases for their income simply should make less money than, for example, lawyers in Houston who bill the county for 600-800 cases per year. This study doesn't tell us anything about appropriate pay rates, per se. It describes the maximum caseload for which a lawyer can perform basic due diligence on the cases without being dubbed ineffective, which is a low bar, indeed. The economics of indigent criminal defense - with privatized supply but a socialized single payer system and low information about attorney quality on the part of both the client and the payer - are a separate matter from what qualifies as a lawyer's due diligence in a criminal case.

Grits thinks of these caseload guidelines, like the state bar's performance guidelines, as analagous to the advice to say the ABCs in your head while you wash your hands. Doing so makes you wash them more thoroughly, keeping your hands under the water for just a few seconds longer than most folks might do instinctively. That's what these guidelines are about. Yes, you could plea the case without any investigation and make more money. And people like making money so there's an incentive to do that. But you're an attorney, not a vending machine. Your job is to zealously represent your client, not methodically shove them over the edge of a precipice whenever the state puts a quarter in your slot.

Think of 1 as equal to a max caseload under the guidelines. Now think of the numbers listed in the guidelines (236 for Class Bs, etc.) as denominators in the fraction of your caseload made up of a particular type of case. Assign numerators according to your caseload (to the extent it's possible to categorize them that way) and add them up.

E.g., if you had 199 Class B DWIs in a year would be scored 199/236 (.843). So that lawyer could still do 12 first degree felonies 12/77 (.156) without going over the guideline, or more of other, lesser types of cases.

The public data site from TIDC allows some back of the napkin calculations for annual salary of attorneys taking the limits from the TAMU study. http://tidc.tamu.edu/public.net/

The actual case levels can't be separated, but:In Harris County, $96 to the attorney for a misdemeanor shows $22,671 per year for 236 Misd B's. In Potter County, it's $84,476 for 236 MB's as they pay $357.95 on average. They had only 555 Misd cases with assigned counsel.

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